1.
Following the political crisis in Ukraine after the President signed an Ukase
on the pre-term termination of powers of the Verkhovna Rada, the Parliamentary
Assembly of the Council of Europe adopted a Resolution 1549 on 19 April 2007 on
the Functioning of democratic institutions in Ukraine.

2.
The Parliamentary Assembly of the Council of Europe asked the Venice Commission
to prepare an opinion on the existing legislative basis for pre-term
parliamentary elections in Ukraine and on the possible ways to improve
electoral legislation based on European practice.[1]

3.
The following opinion was prepared on the basis of comments by Mr A. Sanchez
Navarro (Substitute member, Spain)
and adopted at the 71st Plenary Session of the Venice
Commission (Venice,
1-2 June 2007).

II.General

4.
The current legislature was elected on 26 March 2006. Two major forces were
facing each other for the seats in the Verkhovna Rada – the Party of Regions of
Mr Yanukovitch and the Yulia Timoshenko block (BYT). As a result of the vote
they received 32,14% and 22,29% respectively but neither party got an absolute
majority. As a consequence both forces had to form coalitions. The BYT tried to
form a parliamentary coalition with its former partners from the Orange
coalition – the pro-Presidential “Our Ukraine” and the Socialist party of Ukraine,
however, after several months of negotiations this attempt failed. The socialist
party joined a coalition led by the Party of Regions, which formed a Government
on 4 August 2006.

5.
From the very beginning the work of the parliament was marked by successive
crises.[2]
The latest one resulted from the change of coalition affiliation by several MPs
from the opposition.

6.
On 2 April 2007 the President of Ukraine used his constitutional powers and
took a decision to terminating the powers of the Verkhovna Rada by a decree. A
group of MPs filed a complaint against this decision at the Constitutional
court of Ukraine. On 26 April 2007 the President of Ukraine issued a new decree
on early elections to the Rada which cancelled his decree of 2 April 2007 and
fixed the new date of elections on 24 June 2007. Following negotiations between
the President, the government and different political forces on 27 May it
was decided to hold the elections on 30 September 2007.

7.
The question to be answered in this context would be: do the constitutional and
other legal provisions in Ukraine
provide for sufficient framework for a clear and timely organisation of the
vote and what are the possible ways to conduct pre-term elections in accordance
with the democratic standards?

“both
regular and pre-term elections constitute a legitimate democratic instrument
for the people to choose and control the authorities that act in their name.
Early elections are a normal practice in all democratic countries of the
Council of Europe and as such could be
accepted as a key building block of the political compromise. However, the
Assembly underlines that for any elections to be considered democratic, they
should be conducted according to a legitimate procedure that allows fair
campaigning and free choice for voters.”

9.
As far as the general legal framework for organizing elections is concerned,
the regulatory levels should be clear and there should be a certain stability
of electoral law. The Code of good practice in electoral matters of the Venice
Commission gives clear reasons for it:

“[…]
Stability of the law is crucial to credibility of the electoral process, which
is itself vital to consolidating democracy. Rules which change frequently (…)
may confuse voters.”[3]

10.
In this respect pre-term elections are no exception to the rule. In this
context it can be suggested that changes to the legislation are to be made only
in case if such measure is necessary to protect the constitutional right of the
voters. Therefore, the existing legislation should be thoroughly assessed and
if there is a possibility to remedy to the problem through decisions of the
electoral management bodies, such option might be chosen.

11.
Pre-term elections are a serious event in a political life of any country. Very
often it is a period of tension and heated debate between different political
forces. However, state bodies responsible for organising the vote should manage
the electoral process in strict accordance with the Constitution and the
existing legislation. Political parties have to respect the rules of the game
as well, since fair elections provide them with the legitimacy as political
actors. In this context the role of the electoral management bodies is
essential – they implement the legislation and are in principle independent in their
decision-making both from other state institutions and from political parties.

12.
In Ukraine provisions on
early elections are included in the Constitution and in the law “On the
election of People’s deputies of Ukraine” (CDL-EL(2005)021). It is
important to note that the law on the elections of deputies was adopted before
the last constitutional changes. As a consequence, there could be some problems
in implementing some of the constitutional provisions through the existing law.

13.
Provisions on how an early vote is organised are not described in the
Constitution. Article 77 paragraphs 2 and 3 establishes that early elections
must be held no later than 60 days after the dissolution of the Rada in
accordance with the provisions of the law on the election of the People’s
deputies of Ukraine.[4]

14.
The law on the election of People’s deputies of Ukraine deals with early elections
in its article 16 paragraph 3 and article 102. The first provision just makes a
distinction between “regular” and “irregular” elections and
states that irregular ones are called by the President according to the
procedure established by the Constitution.

15.
However, article 102 establishes a rather detailed framework for organising an
early election. According to its provisions:

a)the same territorial constituencies that have been used for the previous
elections are used for the pre-term elections;

b)special and exceptional polling stations (or special
or exceptional polling districts as they appear in the translation of
the law) are created no later than 19 days before the vote;

c)territorial commissions are created not later than 50 days before the elections
(parties must apply for nomination of their members of the commissions no later
than 53 days before the vote);

d)polling stations are established no later than 12 days before the vote;

e)candidates can be nominated immediately after the publication of the
presidential decree but no later than 40 days before the vote;

f)registration of candidates for the deputies terminates
25 days before the day of elections;

g)informational posters of the parties (blocs),
mentioned in Article 54 of this law, are produced not later than 20 days before
the day of elections;

h)voters’ lists are established by the territorial commissions and
transmitted to the polling stations no later than ten days before elections
(the same term applies to the special polling stations) ;

i)the Central Electoral Commission approves the form and text of ballot
papers not later than 24 days before the day of elections.

16.
As it appears from the above list the process of early elections and different
aspects of organizing the vote are covered by article 102 of the law. In the
case of the current pre-term elections in Ukraine it was decided to hold them
on 30 September 2007. This negotiated solution provides the authorities and
different political forces with the additional time to prepare for the vote.
However, some of the elements of this procedure need a more detailed
regulation.

17.
According to paragraph 2 of the article 17 of the Law on the Central Electoral
Commission of Ukraine it is responsible for the implementation of the
Constitutional and legislative provisions concerning the electoral process. It
has even the power to propose necessary changes to the legislation on elections
and referendums according to paragraph 6 of the same article. Another important
attribution of the Central Electoral Commission is the possibility to adopt
decisions on the practical issues concerning the organisation of the
parliamentary elections (paragraph 3 of the article 19). Some of the unclear
provisions of the electoral law can be completed through a set of specific
decisions adopted by the Electoral Commission of Ukraine and it should use this
power more actively. For example, such aspects as the work of the
electoral administration, the complaints and appeals procedure and voters’
lists might need additional regulation.

18.
The law provides that territorial commissions are created “not later than 50
days before the elections and parties apply for nomination of their members of
the commissions no later than 53 days before the vote”. Under present
circumstances and using the extended timeframe for organising elections the
Central Electoral Commission might envisage the possibility of creating
electoral commissions of lower levels as early as possible in order to
facilitate professional training of their members.

19.
The issue on complaints and appeals procedure in case of early elections is not
addressed by the provisions of the law. This might be problematic under
circumstances where the timeframe for different aspects of organising the vote
is reduced. However, in the case of the present pre-term elections, the
electoral management bodies have enough time to envisage measures providing the
participants to the electoral process with a possibility to appeal against any
decisions, actions or lack of action that might violate their electoral rights.

20.
The process of checking the accuracy of the voters’ lists could be one of the
major problems in the pre-term elections. The Law on the election of People’s
deputies of Ukraine
provides that voters’ lists are established on the basis of lists from the
previous election (in present case the parliamentary election of 26 March
2006). The law on the voter register adopted by the Rada in March 2007 will enter
into force on 1 October 2007. According to the information received by the
Commission the voters’ register does not exist yet. The current provisions
might not be enough for the electoral commissions and other competent bodies to
carry out the work of checking and up-dating the voters’ lists. However, if the
competent authorities, including the Central Electoral Commission address the
issue in a timely manner this problem can be solved before 30 September 2007.

21.
The organisation of elections both regular and irregular in Ukraine is
regulated through several laws. As it has been already mentioned, in the case
of pre-term elections there is a very limited possibility for interpreting the
way how these laws can be applied and combined. In their joint 2006 opinion on
the Law on elections of peoples deputies of Ukraine[5]
the Venice Commission and OSCE/ODIHR recommended the authorities to assess “whether
the combination of various electoral rules into a single electoral code would
be feasible”. This recommendation should be seriously considered by the
authorities.

IV.Conclusions

22.
The Constitution, as well as the electoral law, provide for the basic elements
which must rule special or pre-term elections. Nevertheless, some legislative
provisions and procedural aspects of their implementation seem to be unclear
and/or not sufficient for fully ensuring the electoral rights of voters. This
can seriously compromise the electoral process and create political and social
unrest.

23.
In order to minimise the above-mentioned shortcomings the Central Electoral
Commission should fully use its powers in implementing the existing legislative
provisions on pre-term elections. Its role is essential in organising the work
of the lower commissions, registering the candidates and checking the voters’
lists. In the context of early elections the political climate is tense and
there is a risk of confrontation between political forces. The Central
electoral commission’s role is essential during the pre-electoral period and it
should not be subjected to undue pressure from other state authorities and from
different political forces. If the Central Electoral Commission uses its powers
there should be no obstacles to holding of early elections in a manner
compatible with the European standards.

24.
The legislative provisions should indicate clearly the terms for a timely
allocation of financial resources to organise the pre-term elections.

25.
Decisions taken within their competencies by different state authorities and
courts should be implemented in a timely way otherwise the voters’ trust in the
electoral process could be seriously undermined.

Appendix I

DECREE

of the President of Ukraine

No. 264/2007 (cancelled by the
decree of 26 April 2007)

On the Pre-Term Termination of
Powers of the Verkhovna Rada of Ukraine

Recently a
situation has emerged when the majority in the Verkhovna Rada of Ukraine was
ignoring the constitutional requirements with regard to the formation of the
coalition of deputy factions. To replace isolated instances of inclusion of
some people's deputies into composition of the deputy factions' coalition,
which had taken place during the formation of the Anti-crisis Coalition in July
2006, a new practice of massive enlargement of the coalition on the basis of
individual or group membership has appeared. Such practice is a flagrant
violation of Article 83 of the Constitution of Ukraine which provides for
formation of the deputy factions' coalition in the Verkhovna Rada of Ukraine, upon
results of elections and on the basis of agreed political positions,
exclusively by deputy factions.

The
violation of the constitutional provisions concerning the formation of the
deputy factions' coalition in the Verkhovna Rada of Ukraine distorts results of
people's expression of will, carried out in accordance with Article 69 of the
Constitution of Ukraine through parliamentary elections in March 2006, is a
negation of constitutional election rights of citizens of Ukraine, results in
the neglect of the constitutional principle of people's sovereignty, provided
for in Article 5 § 2 and 3 of the Basic Law of Ukraine. Such developments are a
real pre-condition for usurpation of power in Ukraine which is prohibited by
Article 5 § 4 of the Constitution of Ukraine. This also threatens national
security, causes destabilisation of the political situation in the state, and
creates potential risk to the state sovereignty.

According to
Article 102 § 2 of the Constitution of Ukraine the President of Ukraine is the
guarantor of state sovereignty and territorial indivisibility of Ukraine, the
observance of the Constitution of Ukraine and human and citizens' rights and
freedoms. Such constitutional status of the President of Ukraine obliges him to
take actions to halt violations of the Constitution of Ukraine, of citizens'
rights, to prevent threats to the state sovereignty and territorial integrity
of the state. This, in particular, entails an obligation to effect early
termination of powers of the parliament in the case of violation by the latter
of the Basic Law of Ukraine, if there are no other means to prevent flagrant
violations of the Constitution of Ukraine by the Verkhovna Rada of Ukraine.

1.To terminate powers of the Verkhovna Rada of Ukraine of the V convocation before
expiration of its term of office.

2.To propose to people's deputies of Ukraine
to continue to carry out their powers which are not directly related to the
powers of the Verkhovna Rada of Ukraine.

3.To designate extraordinary elections to the Verkhovna Rada of Ukraine on 27
may 2007.

4.The Cabinet of Minister of Ukraine
shall ensure financing of the extraordinary elections to the Verkhovna Rada of Ukraine.

5.The Central Election Commission shall ensure the holding of the
extraordinary elections to the Verkhovna Rada of Ukraine
in accordance with the Constitution of Ukraine, Law of Ukraine "On the
Elections of People's Deputies of Ukraine", and other laws of Ukraine.

6.This decree comes into effect from the day of its official publication.

President of
Ukraine
Viktor YUSHCHENKO

2 April 2007

Appendix II

Articles 16
and 102 of the Law of Ukraine
On Elections of People’s Deputies of Ukraine

1. Regular
elections of the deputies are conducted on the last week of March of the last
year of powers of the Verkhovna Rada of Ukraine, the term of which is
determined by the Constitution of Ukraine.

2. Electoral
process of regular elections of the deputies begins 120 days before the day of
elections. The Central Electoral Commission announces the beginning of an
electoral process not later than 125 days before the day of elections.

3. Irregular
elections of the deputies are conducted on the last week of the sixty-day
period after publication of the Decree of the President of Ukraine on pre-term
termination of powers of the Verkhovna Rada of Ukraine, issued according to the
Constitution of Ukraine.

4. Electoral
process of irregular elections of the deputies starts on the day following the
publication of the Decree of the President of Ukraine, mentioned in part three
of this Article.

5. Electoral
process is terminated by official declaration of the results of elections of
the deputies by the Central Electoral Commission.

1.
Territorial constituencies created for conduct of the last elections of
people’s deputies of Ukraine
are used for conduct of irregular elections of the deputies.

2. Special
or exceptional polling districts for conduct of irregular elections are created
not later than 19 days before the day of elections and in exceptional case of
creation of a polling district in accordance with Article 19 part eleven of
this Law – not later than 5 days before the day of elections in the order
established by this Law.

3.
Territorial electoral commissions are created not later than 50 days before the
day of elections upon the applications of parties (blocs) – subjects of
electoral process of last elections of people’s deputies of Ukraine, which
are submitted to the Central Electoral Commission not later than 53 days before
the day of elections.

4. Polling
district electoral commissions are created not later than 12 days before the
day of elections, and in exceptional case of creation of a polling district in
accordance with Article 19 part eleven of this Law – at the same time with
creation of polling districts upon applications of republic in the Autonomous
Crimea Republic, oblast, local in city Kyiv or Sevastopol organization of a
party (bloc) – subject of electoral process. These requests are submitted to
the territorial electoral commission 15 days before the day of elections in the
order established by Article 23 of this Law.

5.
Nomination of candidates for the deputies starts on the next day after
publication of the Decree of the President of Ukraine on pre-term termination
of powers of the Verkhovna Rada of Ukraine, and terminates 40 days
before the day of elections.

6.
Submission of documents for registration of candidates for the deputies to the
Central Electoral Commission terminates 30 days before the day of elections.
Registration of candidates for the deputies terminates 25 days before the day
of elections.

7.
Informational posters of the parties (blocs), mentioned in Article 54 of this
law, are produced not later than 20 days before the day of elections.

8. Lists of
electors in exceptional polling districts are prepared according to the
procedure, established by law and are transmitted to the territorial
commissions no later than 20 days before the elections.

9.
Territorial electoral commissions transmit one copy of the electoral list to
the poling district electoral commissions no later than ten days before the
elections.

10. Lists of
electors in special polling stations are established according to the law no
later than 10 days before the elections.

11. Lists of
electors in foreign polling districts are drawn up in the order envisaged by
this Law. Lists of electors are transmitted to the foreign poling districts no
later than ten days before elections. Lists of electors in foreign polling
districts are verified according to the provisions of the present law.

12. The
Central Electoral Commission approves the form and text of a ballot papers not
later than 24 days before the day of elections.